You're Fired

Mike Maslanka

empathy...that's what this employment lawyer has gotten over the years for hr when it comes to telling a person that they're fired...i've had to do it 4 times(with people in my old firm,not for a client) and it's hard...what's been your toughest experience?---mine was telling a lawyer who broke down when i gave him the news(and sadly--a poor reflection on us--it did come as news to him)...but it worked out well--he's now at a much better place,learning a lot more,and with a good group... i'd be interested in your experiences...Regards from texas,mike maslanka

System

[font size="1" color="#FF0000"]LAST EDITED ON 07-15-01 AT 01:13AM (CST)[/font][p]I did discipline in a couple of local government agencies under civil service system for approximatley 18 years. That included policies on progressive discipline (but they provided for immediate discharge when an employee's misconduct or other type of issue rendered the employee immediately unsuitable for further employment with the agency) and the right to appeal certain forms of disciplinary actions against "permanent employees" (non-probationers) to the Civil Service Commission. The Commission could order a full-blown, evidentiary, administrative hearing before a hearing officer who was a contracted attorney. The hearing officer's decision was a recommendation, which included findings of fact and conclusion of law, that the Commission could accept, reject or read the transcripts before ruling on the substantive issues and making its own decision. Our unit was involved with the discipline process at EVERY step.

Not only did I and others recommend disciplinary and discharge actions to my agency's management within the civil service system of the local governmental jurisdiction, we represented the agency in the civil system hearing, presenting the case, witnesses, exhibits, opening and closing arguments, etc. Legal counsel who were employees of the jurisdiciton's legal branch had done the hearings orignally, but there had been dissatisfaction because the attorneys were not versed in the case, only learning it a day or so before the hearing. Consequently, there was a high percentage of the agency's cases ruled "not sustained." When the responsibility for the preparation and presentation of the evidentiary hearing passed on to the staff who were invooved with advising management on disciplinary matters, the agency's the "success rate" improved significantly. It was an interesting experience. In those 18 years, I think I presented close to 100 cases, most of which I also made the recommendations on and prepared the charges.

I mention all this because I found that being involved in the presentation of the hearings and having to deal with things like cross-examinaton, objections and rulings, the hearing officer's report, and analysis of the case, helped me in subsequent cases to make sure we had a sustainable case. We investigated better, more thoroughly and accurately; analyzed the information better; wrote up the charges better -- simply because we were responsible for putting the case on in an evidentiary hearing. While the technical rules of evidence were not suppose to apply in these hearings, and hearsay was acceptable (except for establishing a "fact"), the reality was that many of the hearing officers did maintain tight control on the presentaiton of witnesses and exhibits. I believe we made better recommendations to management on how to deal with individual incidents of employee poor performance and misconduct.

We made sure we'd have viable cases -- that would most likely pass a civil service hearing officer's review -- as the recommendations were being made on how to resolve the issue at hand, the charges being formed and then the final decision being made. I was getting almost immediate feed back on a very direct and personal level to the disciplinary actions and discharges I recommended to management and in the way I wrote up the charges that I had to prove. Had the responsibility for presenting the hearings been kept with legal counsel, I don't believe the agencies would have been able to make better decisions (both for and against discipline) because we wouldn't have been direclty involved in the hearing and analysis of the heairng officer's report. With doing our own advocacy on the cases we made recommendations on to management, presenting the cases as well, we were better in planning discipline and discharge matters in individual cases; we had an idea of what we would have to prove and the method of doing it as the managers were seeking our advice in handling problem employees. We could give better training and speak specifically to supervisors and managers on what they would need to do with the thought that anyone of these problems could wind up in a civil service hearing.

As I said, we had good success rate. We knew specifcially what we had to prove and how to convince the trier of facts. Sometimes, from a "losing case" we were able to figure out what a hearing officer would be looking for to win our next case before him or her.

The most difficult type issues were those of performance. Of course everything was documented. Often it turned out that every sub-issue in performance became a mini-hearing. I recall a couple of hearings went some 20 days over several months. In performance cases, you had to present evidence on not only the nature of the job and its duties, but how processes worked. An you had to make sure the hearing officer understood these things for when you got into presenting evidence on the "employee's" work deficiiencies. It was very mundane in that regard. I'm sure the hearing officers wanted something more intriguing.

I found that most employees did take the discipline letter or discharge letter reasoanbly well. Some cried, but most "knew" that they were going to be out the door or in "big trouble" before we notified them. We tried to follow the "hot stove" approach to progressive discipline. I really don't recall that any employee became particularly violent when given a notice of discharge, but we often kept the guard informed of a possible problem, anyway. Sometimes an employee would pound a wall as he walked out of the meeting with the manager. Once gone, save for a civil service ruling over turning a discharge, the employee did not return and we usually didn't know what happened to them.

Please excuse this long post.

Gar

In my more than 20 years in management roles I have been fortunate enough not to have to fire anyone - though I've recommended it more times than I care to recall. One thing I've found to be very true. Most employees, when given adequate counseling and warnings, will clean up their act. When "industrial capital punishment" (employment termination) is ultimately performed on those who refuse to heed the warnings and comply, they fired themselves.

Gillian

From a philosophical point of view, HR shouldn't be in the business of firing people. They should be in the business of advising management about managing performance and sometimes that involves someone losing their job, and that is the managers job, just like performance management. One of the roles of HR is to be a safety valve, a place where employees can go to vent or to advise of some trouble that is brewing. Employees won't go to HR if HR is the place where you go to get fired.

Down_the_Middle

Right on, Gillian!!!! HR shoots themselves in the foot by allowing managers to duck this critical responsibility.

Mike Maslanka

ok,hr should stay out of it...let's rephrase---what can anyone say about how they had to prop up a manager to fire someone,or relate a story of a manger who did not,but had to be convinced,or anything along these lines...regards from texas,mike maslanka

Gillian

I've been racking my brain to think of some major problem, but all I can come up with is the mundane. I think that most of the problems occur when counseling managers to document problems properly and then finding out that they don't. Then we are considered obstructionist when we advise against termination. This week I am dealing with an accounting manager who has a problem with an employee who he views as being too slow and misses deadlines. In January I helped him with a letter to the employee which contained expectations and time frames. A couple of days ago he came to me to complain that things weren't any better. I asked him if he had documented any of the missed deadlines, he said no, I asked why not, he said that he didn't have time. Then we had a conversation about the impact of the absense of documentation. I told him that dealing with performance management was as paper intensive as his work in accounting, just in a different way and for a different reason. He wasn't convinced so I administered the final piece of advice. We have, as the final step of the problem resolution procedure, a peer hearing panel. The panel is made up of three employees and two managers. I told him that they had been trained to look for fairness and documentation when listening to the presentations from an employee and the supervisor. I told him that if he had no proof of his interactions with the employee that he would probably lose. He left mumbling to himself, hopefully to think things through and do a better job. Shortly thereafter, the employee came to me to complain about the manager who, in her view, is completely unreasonable in his expectations. I'm not an accountant so I don't know which story is most credible. I do know that if she and the manager can't sort it out and the deparment head is no help, that the peer procedure will decide, and the manager had better be prepared to justify the fairness of his actions.

ed r

You are fortunate when you have the whip of peer review. What do you do when you don't have a way to move that manager? If you are senior enough you can speak with some authority and/or you could speak to that manager's boss though at some risk of alienating your HR role. A more important question is what a less senior HR person does when a more senior manager underperforms or refuses this responsibility. How can HR get and exercize the clout to move the deficent manager. To some extent it depends on how enlightened and observant top management is and what messages they have sent - that means it's HR's responsibility to get this message across (training and culture) before an issue arises. Training is another way to gain some (moral) authority.

On the issue of HR conducting terminations: I never really had a problem with that. It's a lot easier for them after counselling on what to say and how and also when I attend as a witness and hand-off person.

Ed R.

Gillian

Good questions! It is harder when managers do not want to follow the advice of HR or when the HR person is a less senior one. My old way of handling these type of situations was to describe to the manager the pro's and con's of their proposed action. On a scale of 1 - 10, 10 being the most problematic, firing this person is an 8 because --------. I can help you reduce the risk, although it will take a little time by --------. Then, it is your decision, let me know what you want to do. On occasion I have told the manager that their proposed action is so problematic that it is necessary to inform their manager. Usually they would back off, if not I followed through.

There are some things that the less senior person can do. One is to accept the fact that the manager is the problem and that the role of HR is to advise. If the manager chooses to ignore the advice don't take it personally, just be prepared, if asked, to say that the advice was given but it was not taken. I think that sometimes we harm our credibility by telling managers "you can't do that because -----". Then we really are viewed as a stumbling block. If the HR person is held accountable for poor decisions on the part of managers, then it is time for the HR person to chalk up what has been learned and find another job.

Regarding participation in the firing, you describe a different scenario and one that I might do in appropriate situations. If you are viewed by the employee, and other employees (a key point) as a counselor, that might be OK. If the perception is that the HR person is a hatchetperson, then the true role of HR has been damaged irreparably.

Don Avery

In circumstances where I firmly believed that the action(s) that the Manager intended would place the company in an serious at risk situation and where I wasn't successful in convinceing the Manager to change their approach, I suggested to the Manager that we meet with his superior and we both could then state our case. If in the rare event, the manager took me up on it and where I subsequently couldn;t convince his superior, I then proposed that the Superior and myself meet with my boss, the CEO, and present our positions. In 28 years, I only had to do the meeting with the CEO once and in that case my position prevailed

Lois

My toughest experience wasn't in my official HR role but as a member of our church leadership. We recently had to terminate our preacher because of sin in his life which had resulted in his wife kicking him out of the house. He confessed his sin and was very repentant. We really wanted to "forgive and forget." We also didn't want to leave him and his family without an income. However, it clearly wouldn't have been appropriate for him to have just stepped back into the pulpit--nor did we know when that would be appropriate given the instability of his family situation. We had to conclude that terminating our employment relationship was what we needed to do even though we would continue to care for him spiritually.

It was a very tough decision. It gave me more empathy for the managers I advise. Even though it sometimes feels like "I" determine whether someone is
fired, I always know that in the end, it's management's decision. In this case, however, I was part of the decision-making body and had to accept that
responsibility. I definitely prefer the advisor role!

Mike Maslanka

lois,thanks for your thoughts...empathy is a very useful emotion to develop(unlike sympathy) and i think makes us better managers,lawyers,and hr people...regards from a very hot texas,mike maslanka